Key Issues for Immediate Legislative Reform

Immigrants’ List supports a comprehensive approach to immigration reform.  Our current immigration system must be replaced with a system based on fundamental fairness, justice, and respect for due process of law. 

Our core issues for legislative reform include:  keeping American families together; increasing the number of visas for workers sponsored by U.S. employers; restoring due process and judicial review; providing relief from deportation for long-time permanent residents; and crafting a program to regularize the status of the 12 million undocumented foreign nationals working and living in the United States. 

While we believe legislation addressing these issue should be part of a comprehensive reform package, amendments can be enacted separately in order to provide immediate relief to deserving foreign nationals, their families, and their employers. Below are some key issues suitable for immediate legislative reform.

1. Eliminate the Three- and Ten-year Bars, or Expand the Availability of Waivers

Issue: 

INA § 212(a)(9)(B)(i)(I) bars anyone who has accumulated more than 180 but less than one year of unlawful presence in the U.S. and who departs from seeking readmission within three years of the date of such departure. Section 212(a)(9)(B)(i)(II) bars anyone who has accumulated more than one year of unlawful presence for ten years.  The three- and ten-year bars were added into law by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA).

INA § 212(a)(9)(B)(v) provides a waiver of these bars if the foreign national has a qualifying relationship (spouse or parent) to a U.S. citizen or lawful permanent resident and refusal of admission of the foreign national would result in extreme hardship to that spouse or parent.  Hardship to the foreign national or his or her children is not a factor.

Solution:

Restore the immigration law to the pre-IIRAIRA language which eliminates the three- and ten- year bars altogether.  This ameliorative fix would eliminate the incentive for foreign nationals who have already accrued unlawful presence to remain in the United States indefinitely and underground.

Alternatively, expand the waiver under § 212(a)(9)(B)(v) to include hardship to the applicant’s U.S. citizen or lawful permanent resident children and to the immigrant applicant him or herself.  This amendment would keep more families together as well as permit deserving applicants are to make their case.   

2. Restore Judicial Review

Issue:

In 1996 Congress passed legislation that contained a number of provisions restricting the ability of noncitizens to have their cases heard before a neutral arbiter in federal court.  Many of these cases decided by the immigration agencies have life-altering consequences. Under current law, even decisions which are arbitrary, capricious, show prejudice or misconstrue or fail to consider the evidence are not reviewable by the federal courts.  In addition, the critical safety net provision of habeas corpus review is no longer available.

Solution:

Restore judicial review of individual removal orders for arbitrary, capricious or other conduct contrary to law by adding a new paragraph “(E)” to INA § 242(a)(2); restoring the jurisdiction of the district courts over any case or claim arising from a pattern or practice in which the operation or implementation of the immigrations laws is arbitrary, capricious or otherwise contrary to law by adding a new paragraph “(h)” to INA § 242. 

3. Advance Registry Date

Issue: 

INA § 249 provides that a foreign national who has resided in the U.S. continuously since entry prior to January 1, 1972 may register for lawful permanent residence.  This provision was amended last in 1986, advancing the registry date 24 years, from 1948 to 1972.  Registry recognized that it is in the public interest to regularize the status of long-time foreign nationals who have resided in the United States without proper status.  Registry is available to such foreign nationals who are of good moral character and are not ineligible for citizenship. 

Solution:

Advance the registry date to January 1, 1990, thus permitting eligible foreign nationals who have resided in the United States for almost 20 years to become lawful permanent residents. 

4. Elimination of Mandatory Detention Under INA § 236(c)

Issue: In 1996, INA § 236(c) was added to the immigration laws, mandating that the Attorney General detain lawful permanent residents who had committed a criminal offense, even if that offense was relatively minor, that was classified as a misdemeanor when committed but after 1996 because by definition became an aggravated felony, or where the punishment was probation.  As a consequence, at any given time, some 31,000 individuals are in ICE custody. Many are held in county jails, with very limited visitation, virtually no exercise, and very poor treatment. There have been extensive reports on the poor medical treatment of those in ICE custody, and 80 reported deaths.  As a consequence, many in ICE custody simply give up:  they sign away their right to a hearing or accept prehearing voluntary departure.  Once deported or “voluntarily” departed, some try to reenter illegally to rejoin their families, facing the very dangerous conditions on the border and a heightened chance of arrest, prosecution, and re-incarceration.  The system itself creates a vicious cycle.  In addition to the physical and psychological harm caused to the detainee, their spouses and children - many of whom are U.S. citizens - suffer greatly.  Children often experience depression and some contemplate suicide.  Spouses have their homes foreclosed, and families become homeless because a key “breadwinner” is now unable to work.   

If the human toll of mandatory detention is not enough reason to amend this provision, the government’s astronomical expense of detaining those subject to the mandatory detention provisions is, not to mention the longer term costs to society as a whole. 

Solution: 

Amend § 236(c) so that ICE officials and the Attorney General can exercise their discretion when to incarcerate and when to release.  The Attorney General and ICE officials can then institute alternative methods to ensure that the lawful permanent resident or foreign national will appear at his or her deportation hearing, such as bond, ankle bracelets, and other less restrict methods of monitoring the individual’s movement and behavior. These decisions would be subject to review by the Attorney General.  (See Attachment D) 

5. Statute of Limitation on Certain Offenses, such as Fraud

Issue: 

Under the immigration laws, there is no statute of limitations for offenses for admissibility purposes.  This is true even when the offense took place years ago or when the offense was committed unwittingly.  In other instances, a lawful permanent resident pleaded guilty to an offense that was classified as a misdemeanor but after 1996 was elevated to an aggravated felony.  As a consequence, LPR or foreign national now must obtain a waiver, if he or she is eligible and can afford it, or forego full integration into American society. 

There is also a permanent bar currently for misrepresentations even if they are minor and are the result of incorrectly completing a computerized immigration form.

Solution:

Create a ten-year statute of limitations on certain offenses that render foreign nationals inadmissible. (See Attachment E)

6. Increase the Number of H-1B Visas Available Each Fiscal Year

Issue:

In 1990, Congress passed the Immigration Act of 1990 which established new numerical limitations on the number of visas to be issued each fiscal year for specialty workers under the H-1B category.  After a transitional period, that number was set at 65,000 for specialty workers where the job required a bachelor’s degree.  Another 20,000 visas were made available to individuals who received a master’s or higher degree from a U.S. college or university.  For the last 5-6 years, the number of petitions filed by U.S. employers for H-1B specialty workers has far exceeded the number of visas available.  For the last two years, 2008 and 2007, the number of visas available were exhausted on the first day of filing, April 1st, for work that commences on October 1st.  In 2006 and 2005, the cap was reached in May and August, respectively.  (In 2007 alone, three times the number of H-1B petitions were filed for 65,000 visas.)  For four years now, thousands of U.S. employers have been unable to hire needed professional specialty workers, and their inability to do so has adversely impacted our country’s competitive edge in the global economy. 

Solution:

Increase the number of cap subject H-1B visas to 115,000 (FY99 level, and as provided in early proposals, such as the SKIL bill) to better reflect the current needs of American business.  Alternatively, exempt from the cap industry-specific positions where documented shortages exist. (See Attachment F)

7. Increase the Number of Immigrant Visa Numbers Available Each Fiscal Year

Issue: 

Nineteen years ago in 1990 Congress revamped the entire employment-based immigrant visa system.  Most significantly, it substantially increased the number of employment-based immigrant visas available each year.  Concerned in part that highly skilled and educated foreign nationals were emigrating to Canada and Europe due to long waits and immigrant visa unavailability in the United States, Congress sought to attract this new wave of the best and the brightest.  At the time, it took approximately two years to obtain an employment-based immigrant visa.  Today, the dearth of employment-based immigrant visas today is far more pronounced. Highly-skilled and educated foreign nationals from around the world, especially from India and China, must wait at least four and perhaps six or even ten years to complete the processing of their “green card” application.  As with H-1B visas, visa backlogs of five and more years to accord the world’s most valued and needed workers the right to live permanently in the United States makes no sense and adversely impacts the country’s economy, as well as countless foreign nationals and their employers. 

On the family immigration side, waits in some categories are now ten to fifteen years. For some people, ameliorating long visa waits only will be accomplished by winning the annual green card lottery.

Solution: 

Increase employment-based visa allocation from 140,000 per year to 290,000 to better reflect the needs of U.S. employers;  treat spouses and children of lawful permanent residents as immediate relatives - since they are for all other purposes (tax, health insurance, etc.) - and not subject to the annual numerical limitations.  (See Attachment G)

8. Ameliorate Harsh Consequences of False Claims to U.S. Citizenship

Issue:

In 1996, INA § 212(a)(6)(C)(ii) was added to the immigration laws which expanded the scope of provisions which made an intending immigrant inadmissible and barred adjustment of status if the individual made false claims to U.S. citizenship.  Previously, such claims must have been made to procure a specific benefit under the INA and the fraud or material misrepresentation must have been made to a U.S. government official.  Now, however, the bar to admissibility and adjustment applies to anyone who falsely claims U.S. citizenship for any purpose or benefit under the INA made to a government official or even a private employer.  Such individuals who are found inadmissible under § 212(a)(6)(C)(ii) are permanently inadmissible and are removable.  While waivers are available for fraud or material misrepresentation in other contexts, no waivers are authorized for false claims to citizenship even for the spouse or children of U.S. citizens or lawful permanent residents.  Ironically, nonimmigrants may seek a waiver under INA § 212(d)(3).

Solution:

Amend the INA and limit the ban on admissibility and removability to persons who willfully make false claims to citizenship; create a discretionary waiver of inadmissibility in the case of an immigrant who is the spouse, parent, child, son or daughter of a U.S. citizen or lawful permanent resident.  (See Attachment H)

9. Waiver for All Grounds of Inadmissibility

Issue:

Under the immigration laws, there are some 33 grounds of inadmissibility that ban a foreign national from adjusting his or her status to that of a lawful permanent resident and later applying for citizenship.  While some discretionary waivers are available for certain grounds and for certain individuals who have close U.S. citizen or lawful permanent resident family members, the vast majority of individuals have no recourse despite a myriad of compelling equities that may weigh heavily in the person’s favor.  Thus, a Purple Heart medaled war hero who previously fell on hard times, bounced a check, and was convicted as an aggravated felon, cannot become a lawful permanent resident even if the U.S. Army seeks to sponsor him for service in a classified mission. No waiver is available.  A general waiver provision also would consolidate all of the various waivers that currently exist throughout the immigration laws.  [Note:  a general waiver provision also would obviate the need for a specific waiver for false claims to citizenship. See 8 above.]

Solution:

Create under § 212 of the INA a provision that that permits the Attorney General or Secretary of Homeland Security, in his or her discretion, to waive any ground of inadmissibility upon the finding of favorable factors that outweigh unfavorable factors.  (See Attachment I)